which have been occasioned to the borrower either CHAP. by accident or the culpa of lender. VI. 3. Depositi, directa et contraria. Here a chat- Depositi tel has been deposited with the defendant with his concurrence, which he is to return when demanded, and in the mean time to keep as he keeps his own. The action is civilis and bona fidei, which lies for the deponens for the return of the res deposita in specie with all accessions. The actio contraria lies for the depositarius for indemnity, or the recovery of any expense occasioned to him in the due care of the property'. 4. Actio sequestraria, directa et contraria. Se-Sequestraquestrum differs from depositum inasmuch as it ria. is with regard to disputed property placed in the hands of a third party. The actio directa lies for the successful party for the return of the sequester and its accessions; and the actio contraria against the successful party for indemnity 2. This Pignora 5. Pignoratitia, directa et contraria. action is civilis, and bona fidei, for the recovery of titia. a chattel pledged as security for a debt. It lies for the debtor against the creditor for the return of the chattel, and for compensation for any damages it may have received. Also an actio contraria of the same nature lies for the creditor for any costs he may have been at in the due care and custody of the pledge. This action is extended utiliter to cases of hypotheca. contracts. The actions arising from verbal contracts (see Verbal Book III. c. 6) are the actiones certi et incerti ex stipulatu; which are unilateral and stricti juris, for the payment or performance of that which was certain or uncertain respectively. The Prætor extended this action utiliter, and so established the actio de constituta pecunia. This was to meet Constituta pecunia. those cases where parties at a distance agreed to pay a certain sum of money, but where there could IV. BOOK be no stipulatio on account of absence. This action applied to one who had promised without a stipulation that he would pay that which he himself owed, or that which he was liable to pay on the part of another. The action is utilis and bona fidei. Ordinis, The actions of beneficium ordinis, and divisionis Divisionis, and cedendarum actionum, applied to the verbal rum actio- contracts of fidejussors: Book III. c. 6. Cedenda num. Ex Chiro grapho. Empti. toria. Condictio certi ex chirographo is the action arising from a literal contract' which lies for the creditor and his heirs, against the debtor and his heirs, for the repayment of the money advanced, and of which the chirographum was evidence. It is an action stricti juris, and unilateralis. The fourth division of nominate contracts are those called consensual. The first is emptio venditio, out of which arose the actions empti and venditi. These actions are civiles, and bona fidei. 1. The actio empti lies for the purchaser to compel the delivery of the thing purchased with all accessions and rights; and on the other side, 2. the actio venditi lies for the seller after he has duly delivered the thing sold, for payment of the price, and interest from the day of delivery. If parties have bought or sold by their agents, these actions lie utiliter for the principal5. Since caveat venditor is the doctrine of the Civil Redhibi Law, two actions arose from this, viz. 1. the actio redhibitoria, and 2. quanti minoris. With regard to the former, if the vendor, sciens reticuit, had concealed defects within his knowledge, he was bound to return the price paid, take back his property, and to place the purchaser as he found him. The sale was annulled. But the actio quanti minoris is for the return of a portion of the price paid on account of defects in the thing sold existing at the Quanti minoris. VI. time of sale, but the contract was not rescinded. CHAP. These actions were founded upon the Edict of the Edile'. The contract of Locatio conductio is consensu- Locati. alis and bona fidei. 5. The actio locati is competent to the locator for the payment of the price agreed upon, with interest, in case of delay, and for restitution of the object let at the termination of the contract, with damages for fraud or neglect. 6. The actio conducti lies for the conductor Conducti. against the locator for the use of the thing let; or, where he is the conductor operis, for the price of the work and labour performed, also for the reimbursement of all necessary expenses2. 7. The actio emphyteuticaria is directa both Emphyteufor the emphyteuta and the dominus, to each and ticaria. their heirs to the dominus, for the canon and laudemium; to the emphyteuta, for quiet possession3. 8. Pro Socio. Partners have actions against Pro socio. each other which are directa, personales, and bona fidei, and they lie to compel each to bring all into the common stock, according to agreement, and to make indemnity for negligence. 9. The actio mandati is bonæ fidei, and arises Mandati. wheresoever business is entrusted to another to be gratuitously performed. The actio directa lies for the mandans against the mandatarius for the due performance of the object of the contract, to render account, and to answer for fraud and neglect. The actio contraria lies for the mandatarius, who has duly performed the mandate against the mandans, for all expenses and losses he may thereby have incurred. The above comprise the nominate actions arising from nominate contracts, which as a general rule extend to and against the heredes of the respective parties. BOOK IV. Actions minate contracts. We will next briefly consider the actions arising from innominate contracts. When a contract is innominate the action upon from inno- it is also innominate, and is said to be in factum, or præscriptis verbis. These are actions given by the Prætor, in aid of certain contracts, or where there is a want of remedy1; or upon innominate contracts; all of which are said to be in factum. In factum or præscriptis verbis. Estimatoria. De permutato. The actio æstimatoria is an action præscriptis verbis, and arises where the owner of property delivers it to another conditionally at a fixed price for the purpose of sale, leaving it at the option of the receiver to return it. Such a transaction could not come within the nominate contract of emptio venditio, because the agreement is to return the thing delivered if it be not sold, and in the same state as it was delivered; nor was it the contract of locati conducti, nor of mandatum. The Prætor therefore established the actio æstimatoria præscriptis verbis, which Ulpian calls actio de æstimato2. The action was therefore innominate and bona fide. It is directa, and competent to the owner, who has given his property to be sold, against the receiver for its return, or the value of it. The actio contraria lies for the receiver for the payment of his recompence. The actio de permutato arises from the innominate contract of do ut des. The bare agreement do ut des, except it be accompanied by the delivery of the thing in question, is a nudum pactum, and will so remain until the delivery be made on one side. The consideration then immediately arises, and he who has given has a cause of action against him who has received for the reciprocal delivery of what was agreed on, or the return of his own property. And so of all other innominate contracts, as Do ut facias, Facio ut facias, &c. We will now briefly notice the actions arising from obligations quasi ex contractu. And CHAP. gestorum. 1. The actio negotiorum gestorum, arising from Actio nethe contract from which it takes its name', was gotiorum bona fidei, directa and contraria. The former lies for the dominus negotiorum, and his heirs, against the gestor and his heirs, for indemnity for all damage and loss occasioned by fraud or negligence. The actio contraria lies for the gestor and his heirs, against the dominus and his heirs, for the repayment of all money disbursed, and necessary expenses incurred, in the management of the business in hand. If the gestor have mismanaged the business, or have expended money unnecessarily, the action will not lie. 2. Since the office of tutor involves the im- Actio plied obligation to administer the affairs of the tutela. pupil with care, diligence and honesty, hence arises the actio tutela, which is bona fidei, and lies for the 1 Book III. ch. 9. |